In July 2002, I, along with many other members of the local Federal Defense Bar, was invited to a “brown bag” luncheon called by U.S. District Judge John C. Coughenour (pronounced “koo-now-uhr”). Before I discuss the substance of the luncheon conversation, a little background on Coughenour is in order.
Coughenour was appointed to the federal bench in 1981 by then-President Ronald Reagan. Most recently, he sentenced Ahmed Ressam (the terrorist convicted of attempting to smuggle explosives into the U.S. through Port Angeles, Wash.) to 22 years in prison. During the sentencing, Coughenour stated, “Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense. Most importantly, all of this occurred in the sunlight of public trial. There were no secret proceedings, no indefinite detentions, no denial of counsel.”
Palm Beach Post columnist Dan Moffet observed that the judge’s statement “was a stinging rebuke of the Bush administration’s anti-terrorism policies—criticism that carried more resonance because Judge Coughenour has no pedigree as a liberal jurist.” And, by all accounts, he does not. In this writer’s opinion, which is based on numerous observations while appearing before him in several matters, Coughenour is a strict constitutional constructionist who is not shy about ruling against the government for its spurious (and often creative) interpretations of the Constitution. Coughenour frequently has stated, “The Constitution of the United States says what it means and means what it says.” Sadly, overriding constitutional guarantees and daring federal courts to do anything about it is President George W. Bush’s battle strategy when it comes to just how much control the U.S. government can have over its own citizens—and the world.
So, let’ get back to the luncheon. Munching away on my sandwich, and sitting on the floor because the meeting room was packed (when the honorable Coughenour summons you to lunch, you go. It’s a rare occurrence and, therefore, important), I listened to what he had to say. The gist of his message was that “The Constitution of the United States is under attack, and you, as federal defense attorneys, have an obligation, indeed a duty, to protect it.” It was just that simple. Moreover, Coughenour warned that if he ever believed that a constitutional right was in jeopardy and that we, as federal practitioners, failed to raise the issue, we surely would answer to him for that failure. And woe be unto anyone who is ever on the wrong end of one of Coughenour’s chastisements!
So, what do Coughenour’s admonitions have to do with the War on Pornography? To put it bluntly, absolutely everything. This is because the so-called War on Pornography is merely a symptom of a much larger and more ominous war: the War on Civil Rights currently being waged by the Bush administration and the extremists in the wrong – err – on the right. It appears to us to be a War on Pornography because it affects us in the adult entertainment industry in such a direct way. The true “war,” however, is much broader and more frightening in scope. It is, in fact, a multifaceted attack on the very rights that the founding fathers of this country so adamantly insisted be instituted to protect us and future generations from tyrannical leadership. Those rights prevented the institution of strict control over the many by the “super secret society of the select few.” And that very select few are the current commander in chief, his cronies Vice President Dick Cheney, adviser Karl Rove, Secretary of State Condoleezza Rice, U.S. Attorney General Alberto Gonzalez, and the Republican leadership in the House and Senate. It is this band of scoundrels that is responsible for the verbatim reintroduction of 28 C.F.R. Part 75.1(b) (related to model recordkeeping requirements set forth in 18 U.S.C. § 2257) even after the 10th Circuit U.S. Court of Appeals ruled it invalid. That is nothing short of pure arrogance! And, to rub salt in the proverbial wound, when the judge in the pending case of Free Speech Coalition v. Gonzalez ruled against the government’s attempt to reinstate the regulations, the government responded by amending 18 U.S.C. 2257 before the question was adjudicated fully. Ironically, the government is financing this onslaught with tax dollars resulting from the $12 billion in revenue that is generated each year by the online adult entertainment industry.
The government’s illegal interpretations of federal law aren’t limited to 18 U.S.C. 2257. The White House is improperly “expanding” the scope – while increasing the ambiguity in explication – of other laws, as well. In the current cases brought by the Federal Trade Commission against industry members, the government is unconstitutionally broadening the scope of CAN-SPAM in an attempt to collect settlements (read: extortion) from industry producers for the wrongful acts of affiliates. Apparently, because the government can’t “find” the affiliates, they are threatening (often, successfully) producers with exorbitant fines (frequently in the millions of dollars) if those producers don’t settle with the government and pay settlement amounts commonly in the range of $500,000 to $1 million, coupled with requirements that the producers “monitor and regulate” affiliates’ activities (a duty that Congress has specifically imposed on the government). Compounding the problem, and emboldened by the government’s success in these efforts, state attorneys general are now making the same spurious claims against people both within and without the adult entertainment industry.
Furthermore, local governments increasingly are persecuting people in the adult entertainment industry by charging them with criminal violations of zoning ordinances that are designed to regulate the flow of “real-people” traffic to adult entertainment businesses (such as bookstores and strip clubs) for operating online adult entertainment businesses in otherwise regulated areas. Yes, a chill wind blows, indeed—and it’s getting colder. In Kitsap County, Wash., the county prosecutors recently charged a couple who used their house simply as a stage with a violation of the county’s zoning ordinances which prohibit the operation of an adult entertainment business without a license. The couple was shooting bondage content that was ultimately displayed on the Internet. Fortuitously, and in an exercise of judicial intellectual honesty, the judge dismissed the charges observing that the zoning laws do not apply to online businesses. Similarly, in Bowling Green, Ky., a woman who sells sex toys and massage oils online was charged with operating an unlicensed sexually oriented business. In Palmdale, Calif., local officials are seeking to update the city’s zoning ordinances to prohibit webcasting of an adult-oriented nature from locations within residential areas.
Are these types of zoning ordinances in violation of the constitutional right to freedom of speech? You bet they are! And the U.S. Supreme Court has stated unequivocally that they are presumed to be violative of that right. But – and there is always a but – the ordinances may be allowed if, and only if, the legal body enacting the ordinances can show that the operation of an adult entertainment business in a prohibited area creates “negative secondary effects” on the area. The Court agrees that allowing adult entertainment businesses to be located within a certain geographical radius of schools, churches, residences, etc. can give rise to “negative secondary effects” on those areas (e.g., foot traffic of “seedy” patrons, it could be argued); therefore, within certain constraints, it permits legislative bodies to prohibit the establishment of adult businesses within those geographical radii. However, the Court opines, the enacting body must provide a reasonable geographical area in which the businesses can be established in order to protect the constitutional rights of the business operators and their patrons.
Luckily, not all of the judges who are adjudicating these disputes are sympathetic to the right-wing zealots. And, in many cases, even if they are sympathetic, they don’t allow those sympathies to persuade them to violate the doctrine of stare decisis (the legal doctrine that requires courts to adhere to the policy of standing by precedent and not disturbing a settled point of law). Rather, these courts are upholding the constitutional rights of individuals, even in the face of increasing pressure to violate them. And the increasing amount of pressure on the courts is a very real and growing problem. The judiciary is being replaced furtively by judges who are sympathetic to the obliteration of the adult entertainment industry and the accompanying erosion of the protections guaranteed in the Bill of Rights of the U.S. Constitution. While it is true that most of these inauspicious judges are those who are elected to the bench, there is still a matter of concern with federal judges, who are nominated to the bench by the president and appointed by Congress for life. Sadly, many ultra-conservative judges nominated to the bench by President Bush will have a profound effect on the interpretation of laws long after he leaves office. Many of the laws that are designed to eradicate the adult entertainment business are sponsored and supported by ultra-conservative Republicans who, too, can be voted out of office. The problem here is that it is significantly easier to enact a law than it is to remove it, and the judges who will be ruling on the constitutionality of those laws are, in most cases, federal judges who have been given lifelong appointments. It is this combination that forms the true basis of the War on Civil Rights and the War on Porn. It is this combination that forms the basis for an urgent “call to alms” and demands that you take affirmative steps to fight back.
Fighting back does not mean running to an offshore location to conduct your business. Moving offshore doesn’t protect your market, because your largest market is the citizenry of the U.S. If you allow laws to be enacted that eviscerate their rights to buy your goods and services, then you will be speaking freely, but to an empty room behind a tightly locked door. No, the time has come for the online adult entertainment business to start behaving like a business, because it is one business—a very large business. And very large businesses invest in their ability to continue to operate as very large businesses.
Large businesses, by the very nature of their size – and much to their aversion – commonly suffer the scrutiny of Congress. For example, automobile manufacturers incessantly are plagued by Congress enacting laws that regulate their industry and impose regulatory schemes on them, all with the proffered intent of protecting the consumer. However, Congress members are inherently prone to introducing and passing legislation that places an inordinate and costly burden on the manufacturers. This burden necessarily erodes the manufacturers’ profits. To combat this relentless erosion, automobile manufacturers hire professional lobbyists to advocate for them and against laws that are fiscally harmful to them. While the services of these lobbyists are not insignificant, the automobile manufacturers realize that these costs are significantly less than the costs that could otherwise be imposed on them by bad legislation.
Similarly, manufacturers form and finance trade associations. It is under the penumbra of these associations that the manufacturers band together to educate themselves about pending regulations, strategize and plan courses of action to oppose those regulations, plan and adopt self-regulatory schemes designed to preempt governmental regulatory impositions, and finance and hire effective lobbying agents to advocate on their behalf against pending legislation that is financially harmful to them. It is the formation and support of such a trade organization that current legislative actions are demanding of the online adult entertainment industry. More than simply filing a single lawsuit related to a single question, such an organization must essentially comprise all of you in an ongoing effort, suitably financed by you (hence, the “call to alms”), to fight bad legislation and oppressive regulatory schemes. Yes, the time has come in the adult industry (as it does in all industries) for its members to grow up and band together to protect what has taken you years collectively to build into a very large business.
The War on Civil Rights and the War on Porn demand your attention. The longer you keep your head firmly planted in the sand, the larger that war will grow around you unopposed. It is time to invest in your own business by investing in protecting that business. It is time to be proactive instead of reactive. It is time to budget for the costs of fighting Congress in its own halls, just as surely as you budget for the costs of hosting and marketing. It is time to organize effectively and to fight back. It is time to make the time for that battle. It is time to stop partying long enough to take the steps you must take to protect your right to party and the means that grant you the luxury of partying. It’s time to protect your rights before they are systematically stripped from you. It’s time.
